Policy and Practice June 2017

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Policy&Practice June 2017 24
legal notes
Every video-recorded child sexual
abuse investigative interview
is unique and cannot be replaced if
the recording is lost, damaged, or
destroyed. Arguing that the failure
to properly preserve video evidence
was not done in bad faith may not
pass legal muster. Pursuant to the
Due Process Clause of the 14th
Amendment, “criminal prosecutions
must comport with prevailing notions
of fundamental fairness” California v.
Trombetta, 467 U.S. 479, 485 (1984).
Simply put, if a video has not been
properly preserved it may cause
problems with due process later.
In many states, by law, video
recording child sexual abuse investi-
gative interviews must be preserved
as evidence. For instance, the Iowa
Code § 232.71B (2015) [Duties of the
department upon receipt of report]
provides “...19 Rules. The department
shall adopt rules regarding the intake
process, assessment process, assess-
ment reports, contact with juvenile
court or the county attorney, involve-
ment with law enforcement, case
record retention, and dissemination
of records for both child abuse assess-
ments and family assessments.”
Similarly, South Carolina Code Ann.
§ 17-23-175 (2013) [Admissibility of
out-of-court statement of child under
twelve; determination of trustwor-
thiness; notice to adverse party],
subsection (A)(2) states: “an audio and
visual recording of the statement is
preserved on film, videotape, or other
electronic means, except as provided
in subsection (F).” Subsection (F)
states: “Out-of-court statements made
by a child in response to questioning
during an investigative interview that
is visually and auditorily recorded
will always be given preference. If,
however, an electronically unrecorded
statement is made to a professional
in his professional capacity by a child
victim or witness regarding an act of
sexual assault or physical abuse, the
court may consider the statement in
a hearing outside the presence of the
jury to determine:
(1) the necessary visual and audio
recording equipment was
unavailable;
(2) the circumstances surrounding the
making of the statement;
(3) the relationship of the professional
and the child; and
(4) if the statement possesses
particularized guarantees of
trustworthiness.”
Our surveillance society and digital
environment have changed every-
thing. Never before have we been able
to record and store such vast amounts
of information. The storage, mainte-
nance, and retrieval of video-recorded
interviews are crucial to ongoing child
maltreatment investigations and for use
in future legal forums. If they are not
properly preserved, there is a risk that
constitutional rights and obligations
Preserving Video-Recorded Child Sexual
Abuse Investigative Interviews
By Daniel Pollack
See Interviews on page 30
Illustration by Chris Campbell